To sample, or not to sample

Larry Lessig’s talking about the new appellate court ruling that any digital music sampling, no matter how distorted or unrecognizable, is a violation of copyright and so requires the permission of the rightsholder.

I have to say, when I first heard “Ice Ice Baby,” with its incessant repetition of an instantly recognizable phrase from Queen’s “Under Pressure,” my immediate first thought was that Vanilla Ice was a lousy, no good copycat. I didn’t find it ironic, or at all an interesting “comment” on Queen’s original — it was unabashed plagiarism.

However, I’ve since seen some examples of sampling that have been done quite well, and do offer an interesting reinterpretation of the music they sample. On the one hand, it’s a shame that this practice now requires the artist to get permission first. On the other hand, I’m thinking, if the musician is so brilliant, how hard would it be for them to just imitate the style they’re commenting on, in much the same way jazz musicians do?

On the other other hand, why are musicians so uniquely impaired by legal restrictions? Book reviews regularly offer verbatim quotes from their subjects. Movie reviewers — and even music reviewers — can play clips of the items they are reviewing. Why not musicians (or, in the case of Vanilla Ice, self-preening frauds)? Doesn’t playing the clip itself make a different statement from simply imitating it? (I’m now imagining if Roger Ebert had to imitate the scenes he was reviewing, instead of just showing them. It’s not a pretty sight.) Is this really the type of artistic statement we want to restrict?

I can see a case being made for allowing musicians to sample a limited amount — somehow making a distinction between “sampling” and “ripping off” another artist’s work. It’s a tricky line to follow: how do we ban Vanilla Ice but allow Warhol’s Campbell’s Soup cans? (Or maybe we want to ban the soup cans, too — I don’t know.) Certainly, unrecognizable sampling should be allowed, right? Not according to this court decision (though methinks this provision would be a tad difficult to enforce).